TYPES AND STYLES OF FAMILY PROCEEDINGS · TYPES AND STYLES OF FAMILY PROCEEDINGS 353 disputes pertaining to family matters. On the other hand, under the current system in Japan, original

349

TYPES AND STYLES OF FAMILY PROCEEDINGS

Koichi MIKI

SUMMARY: I. Introduction. II. Family Courts (or Family Division ofCourts). III. The Role of Judges. IV. Enforcement. V. Alternative Dispu-

te Resolution.

I. INTRODUCTION

Inevitably, proceedings for family law disputes differ from those for ordi-nary civil disputes. The main reason for this is that family relationshipssuch as conjugality or filiality are primarily based on natural ties and emo-tional feelings, unlike transactional or commercial relations which are basedon rational and economic sense.

Accordingly, the use of techniques of negotiated justice and alternativeconflict resolution such as mediation and conciliation, are sometime moredesirable in family law disputes than traditional dispassionate adversarialproceedings.

As family proceedings involve highly sensitive issues which require adeep insight into humanity, additional expertise and special knowledge ofpsychology, pedagogy and sociology are often needed. In addition, courtsmust also take into account considerations of social policy as well as thepersonal interests of parties. These factors, however, vary from country tocountry, reflecting their legal and cultural back grounds and history.

The jurisdictions which I was responsible for analysing are primarilyEast Asian and common law countries, namely: Australia, China, Englandand Wales, India, Japan, Korea, Philippines, Singapore, South Africa, Thai-land and the United States of America. Among these countries, Australia,England and Wales, India, Singapore, South Africa and the United States

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350 KOICHI MIKI

are generally categorized as common law countries, and the others aredeemed to be civil law countries. To be more precise, Japan and SouthAfrica can be seen as a third group, both having some mixed characteris-tics at least from a procedural perspective.

The legal system in South Africa which was rooted in Roman-Dutchlaw, was overlaid with a substantial blanket of English law, particularly inthe fields of administration of justice and procedural law. Similarly, theoriginal Japanese procedural law was modeled on the old German Codebut was subsequently amended several times and significantly influencedby United States law in many respects.

Family law proceedings within the countries in these three groups aresignificantly disparate, which makes a detailed analysis very difficult.Accordingly, in this General Report, I attempt to provide as much infor-mation as possible regarding the countries mentioned above, rather thanmaking a superficial analysis.

This General Report is based on the National Reports written by thefollowing scholars and practitioners. I would like to express my sincerethanks to all of them.

� Ms. Helen M. Alvaré, Professor, Catholic University of America(USA).

� Ms. Yulin Fu, Professor, Beijing University (China).� Mr. John Fogarty, Judge (Australia).� Mr. A. Francis Julian, Advocate, Supreme Court of India (India).� Mr. Masatoshi Kasai, Professor, Kyoto University (Japan).� Ms. Wai Kum Leong, Professor, National University of Singapore

(Singapore).� Mr. Nigel V. Lowe, Professor, University of Wales (England & Wales).� Ms. Elizabeth Pangalangan, Professor, University of the Philippines

(Philippines).� Ms. June Sinclair, Professor, University of Pretoria (South Africa).� Mr. Suwit Suwan, Attorney at Law, Mongkolnavin Law Office (Thai-

land).� Ms. Mee-Sook Yeo, Judge, Seoul District Court (Korea).

Each National Report varies, and places major emphasis on differentpoints. Accordingly, I had no alternative but to highlight only a number ofissues which were dealt with by most National Reports. I chose: 1) Family




TYPES AND STYLES OF FAMILY PROCEEDINGS 351

Courts (or the Family Division of Courts), 2) the Role of Judges, 3) En-forcement and 4) Alternative Dispute Resolution.

II. FAMILY COURTS (OR FAMILY DIVISION OF COURTS)

In general, there is a visible trend in many jurisdictions towards havingspecialized courts or divisions of courts which deal fully or partially withfamily law cases.

The thinking behind this trend is to concentrate family disputes in spe-cialized courts or divisions, and guarantee that such disputes will be effec-tively dealt with by judges who have the necessary expertise. However,this appears to be quite a recent trend, as far as the Asian and common lawcountries for which I received National Reports are concerned.

Many countries are still in the process of establishing nationwide fam-ily court systems and their current arrangements are a type of patchworkcoverage between courts where only a part or parts of the country havespecialized Family Courts or special divisions for family matters.

In China, a few courts in some metropolitan areas are attempting topartition family law cases to be dealt with by an independent tribunal.About one-third of courts nationwide are on a route to reform, and familylaw cases are set aside to be disposed of by a certain panel in those courts.The remainder of the courts deal with family law cases in the same way asany other civil cases.

In India, the Family Courts Act of 1984 was enacted to provide for theestablishment of family courts. Under the Family Courts Act, Family Courtswere initially to be established in cities and towns having a population ofmore than one million, and in other areas as and when necessary. A surveyconducted in 2001 showed that so far 84 Family Courts have been estab-lished in 18 States and Union Territories, and that there were no FamilyCourts in the 18 remaining States and Union Territories.

In Korea, there is only one Family Court in the nation�s capital city,although there are 3 other cities which have family branches of DistrictCourts. In the remaining parts of Korea Family Divisions within Dis-trict Courts function like Family Courts. In the Philippines, a family courtsystem started to be established in 1997 under the Republic Act 8369. TheAct states that a Family Court shall be established in every province andcity in the country. However to date, the country is still in the transitional




352 KOICHI MIKI

stages of implementing the Act. In South Africa, the government instituteda pilot project of Family Court Centres integrating the services of DivorceCourts, Maintenance Courts, Family Violence Courts and Children�s Courtsfor all races at 5 sites across the country. Thailand has also started to estab-lish special courts to handle family and juvenile matters, known as theFamily and Juvenile Courts, pursuant to the Establishment of Family andJuvenile Courts and the Rules of Procedure for Family and Juvenile CasesAct of 1991. Nine Family and Juvenile Courts have already been estab-lished in major provinces thus far. In those provinces that do not have aFamily and Juvenile Court, a Family and Juvenile Department has beenestablished within the Provincial Courts. In the United States, 34 of the 51jurisdictions (50 state and the District of Columbia) have created special-ized courts or separate divisions of courts for family matters alone. In thereminder of the states, family law cases are still treated as part of a generalcivil trial docket.

On the other hand, a few countries have already established integratedFamily Courts or family divisions of courts throughout the nation. In En-gland and Wales, at the High Court level, family law cases have beenhandled exclusively by the Family Division since 1970. At the CountyCourt level, most family cases are heard by specialist divisions. In Japan,the family court system was established in 1949 just after the World WarII. The territorial jurisdiction is the same as that of the District Courts. TheRepublic of Singapore established its Family Court on 1 March 1995 withinits Subordinate Courts. Today the Court resolves all family disputes forthe vast majority of Singaporeans who are non-Muslim.

It should be noted that the concept of Family Courts or family divisionsof courts varies depending on the legal system under which it is estab-lished. In some systems, �Family Court� means a court which has exclu-sive subject matter jurisdiction over all type of family law cases includingactions for divorce, annulment of marriage and separation, together with ac-tions for ancillary relief regarding maintenance, property settlement andchildren. In other systems, however, it means a court which has limitedsubject matter jurisdiction over a certain type of family law case or a courtwhich has concurrent jurisdiction with other ordinary courts. For example,the Family Court in Singapore has a comprehensive jurisdiction over theentire spectrum of family disputes. In India, the Family Courts are alsoempowered to comprehensively deal with all the issues that may arise in





disputes pertaining to family matters. On the other hand, under the currentsystem in Japan, original jurisdiction over family law cases is divided be-tween District Courts and Family Courts. Family Courts deal with non-contentious cases such as appointment of a guardian and non-litigious casessuch as partition of deceased estates, and the District Courts now haveoriginal jurisdiction over litigious family matters, disputes between mar-ried couples such as divorce or relating to parent-child relationship.

However, there can be seen another movement in which some countriestry not only to create Family Courts or Divisions but to design FamilyCourts or Divisions to take comprehensive subject matter jurisdiction overall type of family matters. In Japan, for example, the new Law for Proce-dure in Actions relating to Personal Status, which was enacted in July2003 and is supposed to be effective from April 2004, will transfer theoriginal jurisdiction over such litigation from the District Courts to the Fam-ily Courts. Therefore, in and after April 2004, the Family Courts will ren-der judgments on divorce, acknowledgment of children, and all otherlitigious family law cases as well as non-contentious or non-litigious cases.To give another example, in the United States, following the suggestedconcept of a unified family court, about 11 states have adopted some formof unified Family Court, and 23 states and the District of Columbia arerunning their first pilot programs. A unified Family Court may hear allcivil and criminal cases involving one particular family.

1. Australia

In Australia, there are two sets of courts which deal with the respectivejurisdictions. In family law, jurisdiction is exercised for all practical pur-poses exclusively by the Family Court of Australia, established in 1975,and the Federal Magistrates Court, established in 2001.1 They are bothspecialised courts and deal with family law disputes. Parallel with that theStates and Territories have maintained their own court structures. There isa Children�s Court in each State and Territory which deals exclusivelywith child protection matters and is a specialised court. The more general

1 In Australia, the Federal government had power in relation to marriage, divorce, thechildren of a marriage, and property and maintenance disputes between husband and wife.




354 KOICHI MIKI

State or Territory courts deal with relationship disputes about propertywhich fall within the State or Territory jurisdiction.2

2. China

In China, courts have civil, criminal and administrative tribunals withinthe courts.3 The civil tribunals are subdivided into several types. Generaldisputes between individuals are referred to Civil Tribunal I (CT I), whileCivil Tribunal II (CT II) deal with commercial disputes. In general, familylaw cases are under the jurisdiction of CT I, however, there are wide varia-tions of assignments of cases from court to court depending on the stage ofjudicial reform. A few courts in some metropolitan areas, especially inter-mediate courts, are attempting to partition family law cases to be dealtwith by a independent tribunal which is parallel with CT I. About one-third of the courts nationwide are on a route to reform and family law casesare set aside to be disposed of by a certain panel in CT I in those courts.The remainder of the courts deal with family law cases in the same way asany other civil cases in CT I. However, in China, even in those courtswhich assign family law cases to a special panel or tribunal, such classifi-cation does not carry much weight due to the lack of special procedure,specialized judges and availability of expert assistance for family law cases.

3. England and Wales

Family law cases are dealt with by the Family Divisions of courts orseveral kinds of centres, all at the level of original jurisdiction. At the High

2 The States retained powers in relation to ex nuptial children, child protection inrespect of all children, and property and other financial disputes between couples whowere not married, such as defacto relationships and same sex relationships. However, theobvious inconvenience of dividing powers along the line of marriage or non marriage wasincreasingly recognised over time and more especially in recent years as the number ofnon marriage relationships has increased dramatically. The situation in relation to chil-dren was rectified by the States transferring to the Federal government in 1986 its powersin respect of children except for child protection.

3 The judicial system in China consists of a four-tier hierarchy with the court of sec-ond instance being that of last resort. The four tiers are the Supreme Court, High Courts,Intermediate Courts and Basic Courts.





Court level,4 family law cases have been handled exclusively by the Fam-ily Division since 1970. Judges sitting in the Family Division are mainlydrawn from experienced specialists in family disputes. At the County Courtlevel,5 most family cases are heard by specialist divisions. All matrimonialcauses, that is, actions for divorce, annulment of marriage and separation,together with actions for the ancillary relief of maintenance, property divi-sion and children�s matters must be commenced in County Courts for thispurpose. Of more recent creation during the 1990s and early 2000s arefamily hearing centres, care centres and adoption centres. Only judges whohave undertaken specialist training have jurisdiction to hear cases at thesecentres. Like County Courts, Magistrates� Courts6 were reorganized in the1990s with the creation of Family Proceedings Courts. These are staffedby magistrates drawn from the family panel and they have sole jurisdictionto hear family proceedings. Membership of the Panel requires induc-tion training and a course of basic training. Magistrates are subject to ap-praisal in accordance with the Magistrates� National Training Initiative.

4. India

The matrimonial statutes provide for a category of civil courts whichexercises original and appellate jurisdiction over family disputes. Underthe Hindu Act and the Special Act, the District Courts exercise matrimo-nial jurisdiction. In the case of Christians, matrimonial jurisdiction is alsoexercised by the District Courts. In the case of Parsis, the matrimonialjurisdiction is exercised by the Special Parsi Matrimonial Courts consti-tuted under the Parsi Act. In the case of Muslims, matrimonial jurisdictionis vested in the local courts exercising original jurisdiction, normally the

4 The High Court is physically located in London, however, judges of the Familydivision are all liable to go on circuit. Furthermore, additional judges are available to goout on circuit at short notice to hear cases in which a Family Division judge is required.

5 There are some 240 County Courts which are geographically spread across the coun-try. Approximately 176 are divorce County Courts, 114 are family hearing centres and 56are care centres with a similar number of adoption centres.

6 There are about 600 magistrates� courts and sections of them have been designatedfamily proceedings courts. Magistrates� courts are mainly staffed by unpaid �lay� personsknown as magistrates or justices.




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subordinate courts.7 In 1984, the Family Courts Act was enacted to pro-vide for the establishment of Family Courts with a view to promote recon-ciliation and secure speedy settlement of disputes relating to marriage andfamily affairs and for matters connected therewith.8 Under the Family CourtsAct, the Family Courts were initially to be established in cities and townshaving a population of more than one million, and in other areas as andwhen necessary. However, a survey conducted in 2001 showed that so faronly 84 Family Courts have been established in 18 States and Union Territo-ries and that no Family Courts have been established in the 18 remainingStates and Union Territories. The Family Courts are empowered to dealcomprehensively with all issues that may arise in disputes pertaining tofamily matters. There are special qualifications for the judges to be ap-pointed to the Family Courts. In order to be appointed as a judge under theFamily Court Act, a person should be a judicial officer or an advocate ofthe High Court for at least 7 years, or such other qualification as may beprescribed by the Central Government. It has also been stated under theFamily Courts Act that when selecting a person for appointment as a Judgeof a Family Court, every endeavor should be made to ensure that the per-son should be committed to the need to protect and preserve the institutionof marriage and to promote the welfare of children. He or she should bequalified by reason of his or her experience and expertise to promote thesettlement of disputes by conciliation and counseling. Preference shouldalways be given to women.

7 The substantive family laws in India are respective in accordance with the religiouscommunities to which the individual parties of family disputes belong and the substantiveaspects of the personal laws have their influence in the procedural aspects of the lawapplicable to such disputes. Those could be broadly grouped under four systems, that is,Hindu law, Muslim law, Christian law and Parsi law. The courts are required to follow theprocedure prescribed under the respective personal law statutes while deciding cases in-volving family disputes arising under the respective statutes, apart from the commonprocedure prescribed under the Code of Civil Procedure of 1908 (�the Civil Code�) andthe Family Courts Act of 1986.

8 The hierarchical structure of the Indian Courts is as follows: At the national level isthe apex Court, which is the Supreme Court of India. Below it are the High Courts at theState level. Below the High Courts at the District level are the District Courts, whichexercise original jurisdiction in matrimonial matters. Below the District Courts are theSubordinate Courts, and below them are the Munisif Courts, which exercise respectiveoriginal jurisdiction.





5. Japan

The family court system in Japan was established in 1949 in accordancewith the concept of promoting the welfare of families and seeking soundupbringing of juveniles as a part of the postwar democratization. The Fam-ily Court is a specialized court dealing with family affairs cases and juve-nile delinquency cases. There are 50 family courts in Japan, each havingterritorial jurisdiction over its respective district, which is based on prefec-tural boundaries. The territorial jurisdiction is the same as that of the Dis-trict Courts.9 The judges in the Family Courts enter the judiciary by thesame route as other judges. They usually have been assigned to one ormore District Courts, and they may transfer to another court including aDistrict Court and a High Court in the future.

In the current system, the original jurisdiction over family law cases isdivided between District Courts and Family Courts. According to the CivilCode and the Law for Determination Proceedings of Domestic Affairs, theFamily Courts deal with non-contentious cases (e. g., appointment of aguardian) and non-litigious cases (e. g., partition of a deceased estate)through the determination proceedings, which follows a more relaxed pro-cedure than litigation. The Family Courts also deal with litigious cases(e. g., divorce) through the court-annexed conciliation in accordance withthe Law for Determination Proceedings of Family Affairs. Non-litigiousbut contentious cases are also dealt with by conciliation.10 On the otherhand, District Courts now have the original jurisdiction over litigation onfamily matters, which are disputes between married couples (e.g., divorce,confirmation of annulment of marriage) or relating to parent-child rela-tionships (e. g., acknowledgment of a child, confirmation of nonexistenceof such relationship, dissolution of adoptive relations).11

9 The family courts have 203 branch offices and 77 local offices. The family courtsystem is organized with approximately 350 judges and assistant judges.

10 In 2002, in the family courts throughout the nation, the number of newly acceptedapplications for determination is 490,519 (479,781 non-contentious cases and 10,738 conten-tious cases), and the number of newly accepted applications for family conciliation is 128,554.These numbers are constantly increasing during recent seven years, and these numbers in2002 are the most ever since the establishment of the family court system in 1949.

11 In 2002, in the district courts throughout the nation, the number of newly filedactions relating to personal status is 10,120. The number is constantly increasing duringrecent ten years.




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Most recently, there has been considerable reform of the jurisdictionover litigation as to family law cases. The new Law for Procedure in Ac-tions relating to Personal Status, which was enacted in July 2003 and issupposed to be enforced in April 2004, will transfer the original jurisdic-tion over such litigation from the District Courts to the Family Courts.Therefore, in and after April 2004, the Family Courts will render judg-ments on divorce, acknowledgment of children, and all other litigious familylaw cases. This means that the Family Court will have comprehensive ju-risdiction to deal with various family matters through the proceedings oflitigation, determination and conciliation. The main aims of this reformare to make the court system more accessible by integration of the jurisdic-tion over conciliation and litigation and to utilize the expert officers affili-ated with the Family Courts in litigation proceedings.12

6. Korea

In Korea, the only Family Court is in Seoul. There are several familybranches of District Courts or Family Divisions within District Courts inother cities. To be more specific, the Seoul Family Court was establishedin 1963 as a specialized court dealing exclusively with family matters andjuvenile delinquency cases. In three other major cities, family branches ofDistrict Courts deal with those cases. In the remaining parts of Korea, fam-ily divisions within District Courts function like Family Courts. The SeoulFamily Court is the only specialized court that has an abundance of bothhuman and material resources, and its procedures strongly influence othercourts. The Family Court has jurisdiction over all disputes and conflictswithin the family and other related affairs of legal significance, includinglitigious and non-litigious family cases. On the other hand, in principle,the Family Court is not allowed to handle non-family disputes because ithas limited jurisdiction to deal only with family disputes. However, if it is

12 Approximately 1,500 family court expert officers are assigned to the family courts.They are specialists in the fields of human sciences such as psychology, sociology, peda-gogy, and social work. They make comprehensive investigations into the actual situation,turn in a scientific report for the judge, and coordinate human relationship for the properdisposition of family law cases. There are also medical officers, who are experts on psy-chiatry. The judges can utilize their diagnostic results.





required to settle a related civil dispute in conjunction with a family mat-ter, the parties may apply for conciliation with the permission of the con-ciliation committee or judge in charge of conciliation. If the disputes arenot settled by conciliation, the Family Court transfers the civil case to acompetent court. The judges in Family Courts have the same qualifica-tions as other judges in other courts.

7. Philippines

The Family Courts in the Philippines were established in 1997 underthe Republic Act 8369. The Act states that �a Family Court shall be estab-lished in every province and city in the country. Where the city is thecapital of the province, the Family Court shall be established in the mu-nicipality with the highest population�. However to date, the country isstill in the transition stages of implementing the Act. In areas where thereare no Family Courts, family law cases are adjudicated by the RegionalTrial Court, which are courts of general jurisdiction. There are no specialdivisions within the ordinary courts.

8. Singapore

The Republic of Singapore established its Family Court on 1 March1995 as a customised forum within its subordinate courts. Today the courtresolves all family disputes for the vast majority of Singaporeans who arenon-Muslim. The minority Muslim population continue with the privilegeof having recourse to the Muslim Syariah Court that resolves selected fam-ily disputes between persons who married under Muslim law.13 Applica-tions to the Family Court cover the entire spectrum of family disputes.During the subsistence of marriage, these are applications regarding chil-

13 The latest 1990 Census of Population of Singapore shows that only 15% of theresident population of some 3 million people declare themselves as �Muslim�. The vastmajority of 85% subscribe to several different religions including Buddhism, Taoism,Christianity, Hinduism and Judaism. In legal regulation of family matters, this 85% ma-jority is classified as �non-Muslim� to distinguish them from the �Muslim�. In familymatters the two groups are regulated largely by different sets of laws enforced by differ-ent courts, a phenomenon attributable to historical developments.




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dren (including matters of guardianship, custody, care and control and ac-cess), maintenance of spouse and children (including the enforcement ofmaintenance orders made by other courts), adoption of children and pro-tection from violence orders. When the spousal relationship has deterio-rated, there may be petitions for judicial separation or divorce. Where themarriage may not have been valid in the first place, there are petitions fordeclarations of nullity of marriage. Whenever any petition is presentedthere may be ancillary applications relating to the living arrangementsof children, maintenance after termination of marriage and the division ofmatrimonial assets. There are 9 judges and registrars, 9 court officers and30 corporate support officers at the Family Court.

9. South Africa

In South Africa, the government instituted a pilot project of Family CourtCentres integrating the services of the Divorce Court, the MaintenanceCourts, the Family Violence Courts and the Children�s Courts for all racesat 5 sites across the country. Traditionally, in South Africa, the jurisdictionover family law cases was confined to the High Court.14 In addition, thisrule applied only to the cases of whites, coloureds and Asians. Black per-sons wishing to dissolve their marriages were relegated to special DivorceCourts which operate at the level of regional Magistrates� Courts. In 1997,the special Divorce Courts were given jurisdiction to dissolve the mar-riages of persons of all races and to adjudicate ancillary matters such ascustody, maintenance and division of property. In the same year, after anumber of reports recommending a Family Court, a Family Court TaskTeam was established to implement a pilot project to create a Family Courtstructure. The aim of the project is to incorporate under one roof DivorceCourts, Maintenance Courts, Family Violence Courts and Children�s Courts.The idea was to move from an adversarial to a therapeutic model in family

14 In South Africa, the Supreme Court of Appeal may decide appeals in any matterand is the highest court of appeal, except in constitutional matters. High Courts, consist-ing of provincial divisions, may hear constitutional matters other than those that may beheard only by the Constitutional Court, and any other matters not assigned especially toother courts. The jurisdiction of magistrates� courts and other courts is determined by theappropriate Act of Parliament.





dispute resolution, in which a one-stop approach with specialised staff woulddeliver holistic services to citizens in a non-threatening way.

10. Thailand

Thailand has established special courts, known as the Family and Juve-nile Courts, to handle family and juvenile matters pursuant to the Estab-lishment of Family and Juvenile Courts and the Rules of Procedure forFamily and Juvenile Cases Act of 1991. The Family and Juvenile Courtshave limited subject matter jurisdiction over family disputes and juvenilecases. Nine Family and Juvenile Courts have been established within thenine major provinces thus far. For those provinces that do not have a Fam-ily and Juvenile Court, a Family and Juvenile Department has been estab-lished within the Provincial Courts. The Family and Juvenile Departmenthas the same personal jurisdiction as that of the Provincial Court. Regard-ing the courts� jurisdiction, the rule of thumb is that the Family and Juve-nile Courts can hear all cases that concern family and juvenile matterswithin their personal jurisdiction. There is no dispersion or fragmentationof jurisdiction according to the type of litigation or when it takes place.Various family matters may be scheduled for the same day. Moreover, thecourts can adjudicate both the family disputes and associated non-familymatters together since the courts also have jurisdiction over non-family mat-ters that are closely related to the family dispute case over which the courtshave jurisdiction. Family and Juvenile Court judges are not necessarilyspecialized in this field. No special training or particular attributes are re-quired for a judge to be appointed to the Family and Juvenile Court. How-ever, most judges who decide to work in the Family and Juvenile Courthave particular interest and experience in the field. The Act requires twoordinary judges and two lay judges who are experts on family and juvenilematters, one of which must be female. There is a strict standard for anappointment of a lay judge. For example, a lay judge must be at least 30years old, must be trained with regard to judicial duties as well as the Fam-ily and Juvenile Courts� objectives and must either have (or had) at leastone child or have at least two years of experience in a field that involveschild welfare, teaching or training. If the court has determined before thehearing that the lawsuit does not involve the benefit of a minor, then one orboth of the parties may ask the court not to have lay judges present in theproceeding.




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1. USA

In the United States, while the first Family Court was established inthe State of Ohio in the early 1900s, momentum toward statewide familycourt systems grew in the 1960s and has increased in the 1990s. Accord-ing to a 1998 survey, by that time, 34 of the 51 jurisdictions (50 Statesand the District of Columbia) have created specialized courts or separatedivision of courts for family matters alone. The breakdown is as follows:11 jurisdictions have instituted either a separate Family Court or a Fam-ily Division or Department of an existing trial court. 14 jurisdictionsseparate family law cases within a family law division of a larger courtor in a separate Family Court in only some part or parts of the state.9 jurisdictions have planned or operating Family Court projects. In thereminder of the states, family law cases are still treated as parts of ageneral civil trial docket. Recently, the American Bar Association hosteda �Summit on Unified Family Courts� suggesting not only the creationof separate Family Courts or Divisions, but Family Courts designed totake comprehensive jurisdiction over all types of legal matters tradition-ally denominated as family cases. To date, about 11 states have adoptedsome form of a unified Family Court, and 23 states and the District ofColumbia have their first pilot program. The concept of a unified FamilyCourt is that such courts attempt to combine most or all family mattersunder the jurisdiction of one court, and even under the supervision ofone judge or team of judges who remain with the family throughout allof their family proceedings. A unified Family Court may hear all civiland criminal cases involving one particular family. A sample list of mat-ters falling with the jurisdiction of a single unified Family Court couldinclude: divorce, annulment, maintenance, custody, visitation, child sup-port, paternity, termination of parental rights, dependency, adoption, ju-venile crimes, domestic violence, conservatorship, guardianship, andcriminal domestic violence. Another important feature of unified FamilyCourts is their close cooperation with social services regularly neededby families in conflict. These social services may be available in a fam-ily resource center located physically within the court, or by referral fromcourt personnel to services located in the wider community.





III. THE ROLE OF JUDGES

In many jurisdictions, proceedings for family law cases show a markedtendency to be more of an inquisitorial nature even in the jurisdictionsbased on adversarial culture. As mentioned above, family relations are pri-marily based on natural ties and emotional feelings unlike with transac-tional or commercial relations which are based on rational and economicsense. This characteristic inevitably requires courts to handle family lawdisputes with great sensitivity towards the parties. Judges are sometimesexpected to play a paternalistic role. When managing family law cases,they have to always give serious consideration to not only the legal andfactual aspects but also the mental and emotional aspects. Judges shouldbe given a wider discretion to implement such consideration. In addition,as family disputes are closely related to personal matters, the dispositionof each party should be greatly respected. Therefore, consensus-based casemanagement is preferable to purely adversarial proceedings. However, eventhough the common tendency is toward inquisitorial proceedings in mostcountries, differences still exist between common law countries and civillaw countries depending on their fundamental legal structures.

In the common law countries of Australia, England and Wales, India,Singapore, South Africa and the United States, the role of judges in familylaw proceedings is basically still adversarial rather than inquisitorial in na-ture. The parties are responsible for the gathering and presentation of evi-dence. Judges presiding at a hearing remain on the side of a more detachedmodel of adjudication. The courts have no separate power to gather evi-dence. However, even in the common law countries, deviation from tradi-tional adversarial proceedings can be seen in several specific types of cases.One evident example is cases which involve the welfare of children. In En-gland and Wales, under the Children Act 1989, the court must control theproceedings by setting timetables, giving directions about the assessment ofthe child, the appointment of experts and the filing of witness statements.They can also make orders in proceedings that neither party has specificallysought. Another example is cases where one or both parties act pro se. Insuch cases, in the United States, judges adopt a more interventionalist ap-proach in order to assist such litigants in framing the issues, setting priori-ties, and gathering and presenting the necessary and relevant facts.

The basic structure of civil procedure in most civil law countries is be-coming more adversarial. This means that the procedure for family law




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proceedings even in many civil law countries is under the control of par-ties in one way or another. However, it is also true that the inquisitorialnature of family law proceedings in civil law countries is stronger in com-parison with those of common law countries. In Japan, for instance, thecourt may, on its own authority, take into consideration facts which are notproduced by the parties and examine evidence which is not offered bythem. In Korea, the procedure for family law disputes is basically inquisi-torial. The judge conducts an ex officio investigation, seizes necessaryevidence, and examines the parties or their legal representatives.

1. Australia

In Australia, the role of the judge or magistrate in proceedings in anyjurisdiction still remains basically adversarial, in broad conformity withthe common law tradition. However, the disadvantages of that approach incases involving the welfare of children have been recognised, and courtshave been encouraged by the legislature to adopt a more interventionistand directory approach. This is being done to an increasing extent, espe-cially where one or more of the parties is unrepresented

2. China

The procedure of litigation in family law disputes is the same as forgeneral civil cases under the 1991 Civil Procedure Law, and is extremelyinquisitorial.15 The 1991 Civil Procedure Law provides that �It is the dutyof the party to provide evidence in support of his allegations; if, for objec-tive reasons, a party and his agent are unable to collect the evidence bythemselves or if the People�s Court considers the evidence necessaryfor the trial of the case, the People�s Court shall investigate and collect it�.The main duty of the courts is to �examine and verify evidence compre-

15 The inquisitorial system of Chinese style is quite different from that in Continentalcountries such as Japan or Germany. Since judges are public servant of the people, theytake charge of the whole cases refer before them. Their duty is to ensure the judgmentcorrect, to this aim, they can examine evidence and interrogate witness and even collectproofs outside the court, just as lawyers do in pretrial procedure.





hensively and objectively�. It is very common for a judge to interview oneor two parties in an office room.


The family law proceedings in England and Wales are apparentlyadversarial with the exception of those involving children. Under the Chil-dren Act 1989, the court must control their proceedings by setting time-tables, giving directions about the assessment of the child, the appointmentof experts and the filing of witness statements. They can also make ordersin proceedings that neither party has specifically sought. However, theconduct of a case is still left to the parties and their advisers even in casesinvolving children. The courts have no separate powers to gather evidence.The parties are responsible for the gathering and presentation of evidence,although these powers are subject to the overall control of the court eitherto limit oral evidence or to dispense with it altogether in Children Actproceedings. In most cases, parties are legally represented and it is thelawyer who presents the case in court.

4. India

Courts are generally required to follow the procedure prescribed underthe relevant matrimonial statutes. In addition, a civil court is required tofollow the special procedure prescribed under the Civil Code. A FamilyCourt established under the Family Courts Act has to follow the procedureprescribed under that Act. The Hindu Act and Special Act prescribe certainspecial powers and duties of the Courts while deciding family disputesinvolving these statutes. For example, the matrimonial statutes provide formore liberal rules on evidence in comparison with ordinary trials wherethere are strict rules about the admissibility of documentary evidence. Theother special procedure under the Hindu Act and the Special Act includesthe power of the court to consolidate related petitions, the duty of the courtto dispose of the case expeditiously, the duty of the court to bring aboutreconciliation between parties and the power to hold in camera proceed-ings. In the case of Christians and Parsis, the respective matrimonial stat-utes do not provide for any special procedure, but expressly state that theCivil Code governs the proceedings. The special procedure under the Civil




366 KOICHI MIKI

Code includes the duty of the court to bring about settlement between theparties, the power of the court to secure the services of a welfare expertand to hold in camera proceedings. The Family Court Act of 1984 pro-vides for more radical changes. The Family Court is empowered to receiveany evidence which in its opinion would assist it to deal effectively with adispute, though such evidence is not relevant or admissible in other Courtsor other cases. The other special procedure under the Family Court Actincludes the duty of the court to make efforts toward settlement, the powerof the court to secure the services of a medical expert or family welfareexpert and to hold in camera proceedings.

5. Japan

Under the basic structure of the general civil procedure of Japan, theparties have the primary initiative in and responsibility for producing factsand evidence and formulating the point at issue, and the court may not takeinto consideration facts and evidence which are not presented by the par-ties. However, in the litigation about family law matters, being disputesbetween married couples and disputes relating to the parent-child relation-ship, which are currently handled by the District Courts, the court may, onits authority, take into consideration facts which are not produced by theparties and examine evidence which is not offered by them, but only inorder to maintain the marital status or the parent-child relationship. In suchcases, the court must ask questions about the facts and the results of theexamination of evidence to the parties. After the enforcement of the newLaw for Procedure in Actions relating to Personal Status, the Family Courtwill be able to take into consideration facts and examine evidence not pro-duced by the parties in order both to maintain and to dissolve the maritalstatus or the parent-child relationship. However, even in such litigation, inpractice, the principles of general civil procedure prevails, and thus, theparties (and their representatives) have the primary initiative in and re-sponsibility for asserting facts and producing evidence. The courts are usu-ally not very active. Such authority of the courts is and should be only asecondary one. Besides that, under the new law, a court may inquire intofacts in order to make an ancillary decision including designating whichparent should exercise parental powers or have custody of a child, and inrelation to distribution of property. The main methods of the inquiry into





facts are conduct of a hearing by the court and investigation by FamilyCourt expert officers.

6. Korea

The judge plays a more active role in family law disputes than in ordi-nary civil disputes. Basically, the procedure is inquisitorial. The judge con-ducts an ex officio investigation, seizes necessary evidence, and examinesthe parties or their legal representatives. The judge can order the familyinvestigative officers16 to carry out investigative affairs. The judge mayalso entrust such investigative affairs as he or she deems necessary to makea proper report to an administrative agency such as the police, or an orga-nization, or individual.

7. Singapore

The Family Court functions under the adversary system of litigation al-though the more divisive aspects of the adversarial system have been tem-pered by both the substantive family law in Singapore and the processes ofthe Family Court. The adversary system remains the basic underlying struc-ture, although not in the details of how family disputes are resolved. Thereare judicial precedents in Singapore whereby judges have noted that there iskeen public interest and concern in family disputes, especially matrimonialproceedings for divorce. Accordingly, courts try to discover the truth so thatthe law is upheld in every application made to court. By the same token, theFamily Court can draw adverse inferences from the failure of parties appear-ing before it to make full and frank disclosure of their financial status. To theextent that is fair, the judges are proactive in order to discover the facts theyneed to make the right decision.

16 There are family investigative officers who are experts that assist judges in familycourt. By putting their psychological, sociologic, and pedagogical knowledge to practicaluse, investigative officers inquire into the educational background, career, living condi-tions, financial conditions, character, condition of health, and home environments of theparties involved in the case. After their investigation, they submit a report to the judge.




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8. South America

In general, family law disputes proceedings have been very adversarial.The judge in the High Court is passive, granting only what is properlyclaimed. The atmosphere is cold and inhospitable. However, since the set-ting up of the pilot Family Court Centres, a discernible, informal, but strik-ing change has occurred. It is reported that the presiding officer attemptsto assist plaintiffs over the procedural hurdles. Rather than the strictadversarial mode of the High Court, these courts are much more inquisito-rial. The presiding officers do not waive the fundamental rules of courtprocedure, but they are willing to allow a degree of flexibility so long astechnical requirements are complied with. They pose pivotal questions tocircumvent lengthy explanations. Difficult concepts are explained by thepresiding officer to the parties, especially where they are unrepresented,and about half are unrepresented.

9. Thailand

The procedure as a whole for family and juvenile cases in Thailand isadversarial. But in a case involving a minor�s benefit, the Observation andProtection Center will be in charge of the investigation and identify thefacts of the case for the court. When necessary, in light of the well-beingand benefit of the child, the Establishment of Family and Juvenile Courts andthe Rules of Procedure for Family and Juvenile Cases Act allows the courtto appoint a social welfare officer or a psychologist to investigate the posi-tion or condition of the family in order to assist the settlement. The Actprovides further that the court may order physical or mental examinationof any parties if such examination is appropriate and the parties agree.After the commencement of the action, the judge will urge the parties tonegotiate and to settle the dispute. Emphasis will be placed on the child�sbenefit and well-being and the stability of the marriage.

10. USA

The litigation as to family law disputes in the United States is of adver-sarial not inquisitorial nature. The roles of parties and their attorneys incourt is quite similar to other civil matters. Hearings are usually held in a





courtroom, without the public present, although pre-trial meetings are regu-larly held in judicial chambers. Judges presiding at hearings remain on theside of a more detached model of adjudication versus an investigative orinquisitorial model. They rely primarily on the parties and representativesto adequately present the necessary and relevant information. Judges areassisted in this task by rules of procedure which require parties to com-plete standard discovery forms. However, when courts operate as UnifiedFamily Courts, it is likely that judges and their staff will tend toward aproblem-solving posture. In these settings, parties are likely to receive morehelp in scheduling their various appearances and with accessing necessarysocial services. Furthermore, in cases where one or both litigants act prose, judges move toward the interventionalist approach in order to assistsuch litigants in framing the issues, setting priorities, and gathering andpresenting the necessary and relevant facts.

IV. ENFORCEMENT

The mechanism for enforcement of judgments or orders related to fam-ily litigation is basically no different from that for ordinary civil litigationin many countries. The major exception to this is child support. In general,separated fathers (or mothers) fail to pay adequate maintenance for theirchildren, although the living expenses of children arise periodically. Hence,mechanisms for enforcement of child support need to be specially designed.Many countries try to establish a mechanism which renders speedy andsatisfactory methods for regular collection of child support.

For example, in Singapore, apart from traditional measure to enforcemaintenance orders, several modern measures are also available. The mosteffective enforcement mechanism is the order for attachment of earnings,which can be activated even before there has been default. The order forattachment of earnings is actually addressed to the employer of the personordered to pay and the employer should deduct the amount from the salary.In China, similar measures are available. If the father or mother fails tomake a payment by instalment, an executive official can order the em-ployer of the person ordered to pay to deduct the designated sum ininstalments.

In some countries, administrative processes rather than traditional judi-cial processes are adopted as faster and effective methods for enforcement.




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In Australia, for example, an administrative child support scheme was cre-ated in the late 1980s. This is a strong government-based system of en-forcement and collection, and it has been coordinated with the social securitysystem in relation to the amount of social security payments to be made tothe parent who cares for the children. It has virtually removed child sup-port issues from the court system and provides much more uniform andenforceable assessments.

In some other countries, a court order for maintenance can be enforcedby using criminal procedure. In India, the execution of a decree under theCivil Code is through several modes, namely, by attachment of the prop-erty or by arrest of the person and committal to civil prison. In South Af-rica, failure to comply with a court maintenance order is also punishable asa criminal offence. However, a unique feature of the process of enforce-ment is that a magistrates� court hearing a criminal trial for failure to com-ply with a maintenance order may, if it appears desirable, convert thecriminal proceedings into a civil maintenance enquiry.

There are several powerful and innovative tools for enforcement of childsupport in the United States. In 1992, Congress passed the Federal ChildSupport Recovery Act, which for the first time made it a federal crime towilfully fail to pay child support to a person in another state. In 1996,Congress also passed the Personal Responsibility and Work OpportunityReconciliation Act, which permits state agencies to enforce routine childsupport orders without the need to obtain an order from any other judicialor administrative tribunal. The Act also gave states new tools designed toassist them with child support enforcement, such as requiring employersto withhold support from employee pay; tracking license applications forpurposes of denial or suspension for unpaid child support; interceptingworkers� compensation payments, judgments, settlements and lotteries; andestablishing liens against real estate and personal property for overdue sup-port. These remedies are in addition to traditional judicial remedies suchas contempt and execution.

1. Australia

In the late 1980s, the child support scheme was established. This pro-vides an administrative process for assessment of the amount for each year,a strong government-based system of enforcement and collection, and the





co-ordination of that with the social security system in relation to the amountof social security payments to be made to the parent who cares for thechildren. This system is now well established in Australia and has workedeffectively. It has virtually removed child support issues from the courtsystem and provides much more uniform and enforceable assessments.

2. China

There are no distinctions between the enforcement of family cases andother civil cases. If the father or mother fails to pay according to the judg-ment, either by instalments or in total, an executive official may, on therequest of the other party, enforce the judgment by detaining the debtor�sdeposit, salary or other income. In the case of payment by instalments, anexecutive official usually order the employer of the debtor to deduct thedesignated sum in instalments.


The court orders in family law cases are no different in comparison withany other civil cases in England and Wales. In other words, all court ordersare enforceable and disobedience is punishable as a civil contempt of courtin theory. However, in practice, committal orders are deemed as remediesof last resort particularly in family law cases and there is an understand-able reluctance to punish offenders by committing them. The higher courts�contempt powers are wide and sanctions can include fines, sequestrationand imprisonment. Magistrates� powers are restricted by the Magistrates�Courts Act 1981. The contempt sanction is the most serious one availablefor disobedience and ought only to be used when other sanctions havefailed. For example, in the context of maintenance orders, enforcementcan be by distress, committal and by making an attachment of earningorder which directs the employer to deduct sums out of the employee�swages or salary.

4. India

All the matrimonial statues specifically state that decrees and orders ofa court in any proceedings shall be enforced in the same manner, as if they




372 KOICHI MIKI

were decrees or orders made in a regular civil suit. In a similar way, theFamily Courts Act also contains a provision that the decree or order ofa Family Court shall have the same force as a decree or order of a civil courtand shall be enforced in the same way as prescribed by the Civil Code forthe execution of decrees or orders. Thus, all the matrimonial statutesand the Family Courts Act have uniformly equated a decree or order passedin a matrimonial dispute with that of a decree or order passed in an ordi-nary civil suit and enforceable under the Civil Code. The only exception isan order for maintenance passed under the Code of Criminal Procedure. Anorder passed by the Family Court can also be enforced under the Code ofCriminal Procedure by a Criminal Court. The execution of a decree underthe Civil Code is through several modes, namely by attachment of theproperty in execution and sale, or by arrest of the person and committal tocivil prison. In family disputes, the decree generally involves payment ofmaintenance to a spouse and children. In addition, there may be directionsor orders pertaining to the custody of children. When the enforcement of anorder or decree involves directions other than just the payment of money,the courts have the power of contempt to punish a person who has deliber-ately disobeyed an order passed by the court.

5. Japan

A determination and a judgment that become final and binding are en-forceable. Though in principle District Courts have jurisdiction over com-pulsory enforcement, the Family Court has jurisdiction over some formsof enforcement. In cases where a person fails to perform a duty imposed bya determination, the Family Court may force the person to perform thatduty, upon the motion of an entitled person. In cases where a person failsto perform a duty imposed by a determination to pay money or to deliverproperty, the Family Court may order the person to perform that duty,upon the motion of an entitled person. The same power applies to dutiesimposed as ancillary decisions in a judgment rendered by the Family Courtunder the new Law for Procedure in Actions relating to Personal Status.

6. Korea

In principle, the enforcement of a judgment or adjudication in familycases is the judicial task of District Courts. However, it is often difficult to





make a claim for a civil enforcement because the costs are too high com-pared with the amount of the periodic payments ordered by the FamilyCourt. For this reason, the Family Procedure Act provides some specialprovisions. If a person who is liable to perform an obligation in relation toproperty, such as the payment of money, or delivery of an infant pursuantto a judgment or adjudication, fails to fulfil his or her obligation withoutjustifiable reason, the judge may request the person to fulfill such obliga-tion within a specified period. If the person violates the order, the judgemay punish the person with a fine for negligence, not exceeding one mil-lion won. If a person who is ordered to make periodic payments fails tofulfill that obligation three times or more, or if a person who is orderedto deliver an infant fails to fulfill that obligation even after the sanction ofa fine for negligence, the judge may punish the person by detention for upto thirty days until the obligation is fulfilled.

7. Singapore

The Family Court possesses wide power to assist the beneficiary of acourt order. In disputes over property as well as ancillary applications fordivision of matrimonial assets, if the Family Court has ordered one spouseto transfer real property in his or her name to the other spouse, the Regis-trar of the court possesses the authority (where necessary) to carry out theconveyancing just as if the Registrar were the owner of the property. Inthis way the order is not rendered futile by the intransigence of the spousewho owns the property.

In maintenance orders, whether during the subsistence of marriage orafter its termination, there has traditionally been a string of enforcementmechanisms. Besides the traditional, several more modern measures areavailable. The most effective enforcement mechanism is one that is acti-vated even before there has been default, the �attachment of earnings� or-der. Where the person ordered to pay is a salaried employee, it is possiblefor the Family Court to make such an order after having made a mainte-nance order. The order for attachment of earnings is actually addressed tothe employer of the person ordered to pay. The employer is directed andempowered by the court order to deduct the amount from the salary of theperson ordered to pay and to pay this amount into the Registry of the Fam-




374 KOICHI MIKI

ily Court. The beneficiary of the maintenance order can then go the Regis-try and the money is waiting there for him or her.

Another innovation of the Family Court is to use the common device ofautomatic deductions by banks. After making a maintenance order the courtcan make a further order directing the person ordered to pay to write anauthorisation to his or her bank to make automatic deductions from his orher account to the account of the beneficiary.

8. South Africa

In South Africa, failure to comply with a court maintenance order ispunishable as a criminal offence, although placing the convicted defaulterin prison of course deprives him of the capacity to earn the funds to dis-charge his debt. A unique feature of the process of enforcement is that amagistrates� court hearing a criminal trial for failure to comply with a main-tenance order may, if it appears desirable, convert the criminal proceed-ings into a civil maintenance enquiry. The order is also enforceable bycivil execution, against property of the judgment debtor, and by attach-ment of emoluments (including pensions, annuities and gratuities). Thejudgment creditor is the person who applies to the court for a warrant ofexecution. Some jurisdictions have opted for a form of administrative or-der which automatically entitles the judgment creditor to payment, fromthe coffers of the state, on production of the court order. It is then theobligation of the state to find the defaulter and make him pay or send himto prison. Success rates when the state is tracing the debtor for its ownaccount rather than on behalf of a citizen suggest that the system is worthyof consideration.

9. Thailand

With regard to enforceability, the Rules of Civil Procedure apply sincethe Establishment of Family and Juvenile Courts and the Rules of Proce-dure for Family and Juvenile Cases Act is silent on this point. There is nospecial means to enforce decisions, including those relating to child main-tenance, custody and visitation rights, alimony or maintenance. In general,a judicial order can be enforced immediately by the winning party. If the





winning party is unable to enforce the judgment, he may ask the court toorder an executing officer to enforce the judgment on his behalf.

10. USA

Courts regularly enforce orders for payment of spousal support by meansof civil and criminal contempt, assignment, garnishing, replevin, seques-tration and/or attachment of property, wage execution, execution on theobligor�s retirement accounts or even upon his estate after death, liens onreal estate and other assets, interest on past due payments, and costs andattorneys� fees on the defendant. Failures to abide by court orders for prop-erty distribution are enforced most often by civil contempt. Enforcementof custody and visitation orders might involve an order of extra time to thenon-violating party, contempt, compensation for losses and expenses, acoercive fine, and an order to pay the costs of any enforcement action. Forviolation of custody and visitation orders involving kidnapping, a largenumber of states impose criminal penalties, including incarceration. Themajor exception to this is child support where the federal government re-quires states to make increased use of child support agencies to enforcechild support orders using the many additional tools.

In 1992, Congress passed the Federal Child Support Recovery Act, whichfor the first time made it a federal crime to wilfully fail to pay child supportto a person in another state. In 1996, Congress also passed the PersonalResponsibility and Work Opportunity Reconciliation Act (�PRWORA�).Under the PRWORA, state agencies are permitted to enforce routine childsupport orders without the need to obtain an order from any other judicialor administrative tribunal. The PRWORA also gave states new tools de-signed to assist them with child support enforcement, such as, requiringemployers to withhold support from employee pay; tracking license appli-cations (driving, occupational, and professional) for purposes of denial orsuspension for unpaid child support; intercepting workers� compensationpayments, judgements, settlements and lotteries; and establishing liensagainst real estate and personal property for overdue support. These rem-edies are in addition to traditional judicial remedies such as contempt andexecution.




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V. ALTERNATIVE DISPUTE RESOLUTION

In family law disputes, the intentions and wishes of the parties are im-portant as family relationships are of the most personal and private nature.Therefore, negotiated justice and alternative conflict resolution techniquesare sometimes more desirable than litigation proceedings. This is the mainreason that alternative dispute resolution developed in many countries. Forthe same reason, amicable measures of dispute resolution, namely, con-ciliation or mediation, are more popular than arbitration for dealing withfamily law disputes. Recently, the use of statutory based conciliation isincreasing in many countries. In England and Wales, for example, the Fam-ily Law Act 1996 contains the first statutory base for the use of mediationin the resolution of family law disputes.

In some countries, there is a court-annexed conciliation system which ismust be followed before litigation proceedings are commenced. In Japan,the court-annexed conciliation system for family matters was establishedin 1949. Family law disputes such as petitions for divorce must firstly besubmitted for conciliation in the Family Court and the parties may bring asuit only when no agreement is reached through conciliation. The object ofthis is that settlement of family disputes should first be sought through themore private procedures, taking emotions into consideration. In Korea,there is also a court-annexed conciliation system for family law disputes.Attempts at conciliation are required before litigation proceedings are com-menced. On the other hand, in Thailand, alternative dispute resolution isnot mandatory, although in practice most cases reach court only when theparties are not able to settle the dispute on their own.


Mediation, or as it used to be called, conciliation, has been a feature ofthe English family justice system since the early 1970s. It was prompted inpart by the new divorce laws which came into force in 1971. In the late1970s, conciliation services both in and out of court were created and anumbrella body, the National Conciliation Council, was formed. In 1983,an in-court conciliation scheme for dealing with disputed children�s casesbegan at the Principal Registry of the Family Division in London. By the1980s there was a well developed interest in mediation which reflected a





change of attitude towards divorce and a shift of emphasis from the fact ofits dissolution to its financial consequences and especially its effect on thechildren of the marriage. Further developments took place in the 1990s.Mediation was to be at the heart of the new divorce laws to have beenbrought in by the Family Law Act 1996 and that Act contains the firststatutory basis of the use of mediation in the resolution of family law dis-putes in England and Wales. From July 2000, a nationwide scheme knownas Final Dispute Resolution (�FDR�) was implemented. FDR is designedto facilitate agreements upon financial relief ancillary to divorce proceed-ings. An FDR hearing should be ordered in every case save where it is notappropriate in the circumstances. The judge, after a one-or two-hour hear-ing, will give a summary forecast of what in his opinion would be thelikely outcome if the case were to proceed to trial. If, on the basis of thisforecast, the parties reach agreement, an order by consent can be made atthe end of the FDR hearing thereby ending the litigation. If no agreementis reached the case is set down for future trial. The judge who hears theFDR appointment cannot then be involved in the contested formal hear-ing. At present, the Judicial Studies Board has organized a series of semi-nars both about mediation and other forms of alternative dispute resolutionand, since November 2001, has ensured that district judges are specificallytrained about the purpose of mediation. Meanwhile under the new LawSociety Family Law Protocol, issued in 2002, solicitors are required, un-less it is clearly inappropriate to do so, to explain the mediation processand to advise on its benefits for clients.

2. Japan

In Japan, a court-annexed conciliation system for family matters wasestablished in 1949 in order to realize the new post-war ideals in accor-dance with the new Constitution. Family law disputes such as petitions fordivorce must firstly be submitted to conciliation in the Family Court andthe parties may bring a suit only when no agreement is reached throughconciliation. The object of this is to ensure that settlement of family dis-putes is first sought through the more private proceedings, taking emo-tions into consideration. However, even when a suit is filed without anattempt at conciliation, the court need not submit the case to conciliation ifthe court finds it inappropriate to do so. In court-annexed conciliation, a




378 KOICHI MIKI

conciliation committee, which is composed of single judge and two ormore civil persons, hears parties� cases, investigates facts when it is neces-sary to do so, and facilitates or persuades the parties, on the basis of reasonand their interpretation of the law, to reach a compromise and resolve thedispute through agreement between the parties in accordance with the ac-tual circumstances of the dispute. Conciliators are appointed by the Su-preme Court. The selection criteria of selection for conciliators includehaving a great deal of knowledge and experience in social life or expertknowledge and experience, and in principle, being between 40 and 70 yearsof age. If the conciliation committee needs to know the actual circum-stances of the case or the mental state of the parties in detail, such methodsas investigation by expert officers or medical officers of the Family Courtsare utilized. When an agreement has been reached through compromiseby the parties on a date for conciliation, the result is entered into the record.The terms entered into the conciliation record have the same effect as afinal and binding determination or judgment.

3. Korea

There is a court-annexed conciliation system for family law disputes inKorea. Attempts at conciliation are required before proceeding to a dis-pute on such cases as judicial divorce, the claims for damages caused bydivorce, and the division of the property. Family conciliation cases arehandled by a conciliation committee that includes a chief mediator andtwo or more mediators. The chief mediator is a judge. The chief mediatornominates mediators to the conciliation committee from among those whoare well-educated and have a good reputation. Mediators are commissionedin advance every year by the chief judge of the family court, or are ap-pointed with agreement of parties.

4. Singapore

The Family Court offers free mediation of disputes. It would appearthat these services are extremely effective as the Family Court websitereports that, of contested divorce petitions, less than 0.5% proceed to trial.The rest are resolved harmoniously so that the Family Court need onlyrecord a consent judgment. Litigation is truly a last resort. In mediation





parties go before a neutral third party (deputy registrars of the Court or vol-unteers such as psychologists, family therapists and legal academics) whofacilitates discussion of their problems injecting some structure to help themproceed as smoothly as possible. To allow mediation to reach even moreparties, there is opportunity for night-time mediation where a party may beat work the entire day or where both parties are only free at night.

5. Thailand

The Establishment of Family and Juvenile Courts and the Rules of Pro-cedure for Family and Juvenile Cases Act does not require any steps to betaken before the party brings an action to the court. There is no manda-tory alternative dispute resolution. However, in practice, cases reach courtonly when the parties are not able to settle the dispute on their own. Infact, only a small percentage of all family disputes reach the Family andJuvenile Court. There are also many organizations that provide counselingservices and legal aid, but it is up to the parties to seek these services ifthey wish. Although mediation is not required, the Act allows the court toappoint a mediator to help the parties settle. The mediator can be any per-son the court thinks is appropriate and capable of the task. If the courtorders mediation between the parties, the case will be suspended until itconcludes. During this period, the judge will not be involved in the negotia-tion between the parties. If in the end the parties reach an agreement, thisagreement will be submitted to the court. If the agreement complies with thelaw, the court will issue a judicial order in the terms of such agreement.

6. The United States

The most popular kind of alternative dispute resolution used in familylaw cases in the United States is mediation. It was introduced in a signifi-cant way into family court proceedings in the 1970s. Mediation is intendedto be used in connection with traditional litigation and not to replace it.Estimates regarding the percentages of contested family court issues thatare resolved through mediation range from a low of 50% to a high of 85%.By 1995, there were 200 court connected mediation programs available in38 states for family cases. Mediators are sometimes court employees. Else-where, courts keep lists of approved mediators who are not court employ-




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ees. Mediation is most popular in the custody context. All states but 6 inthe United States require parents to mediate disputes concerning custody.Other states allow custody mediation only by voluntary choice of the par-ties. However, almost every state presently requires parties to resort tomediation to some degree in the course of a custody dispute. In 11 states asof 1996, custody mediation must take place before the parties can proceedto adversarial litigation. Commonly excepted from mandatory mediationare cases involving family violence. Mediation is also popular in the UnitedStates in the property distribution and support contexts. Courts will some-times require it after the lapse of a certain period of time following thefiling of the divorce petition if the parties have not reached any agreementon these matters. Mediation is often explored at the beginning of a suit, atthe initial status conference. It may be required that parties attend at leastone mediation session following the filing of the complaint before the casemay proceed further. Some other states require at least an attempt at me-diation before any pretrial settlement conference. Another variation is torefuse either a pretrial or final hearing unless the parties have at least at-tended a seminar about alternative dispute resolution. Another possibilityis to allow a final, contested hearing only on those matters about which theparties have not been able to reach agreement during mediation.

Mandatory mediation also plays a role in some jurisdictions at the time ofany attempted enforcement or modification of a support, custody or visita-tion order. Parties may be required to attend mediation before going to courtwith such requests. It is also possible that the parties will be allowed to ceasemediation after a minimum time period has elapsed without the parties hav-ing reached agreement. The ranks of mediators are filled with lawyers, men-tal health professionals and social workers for the most part. Becausemediators come from different professions, several professional organiza-tions have established minimum standards for mediators, including both theAmerican Bar Association (ABA) and the American Academy of FamilyMediators. The ABA recommends that mediators have knowledge and train-ing regarding: family law, the impact of family conflict on all family mem-bers, child development, domestic and child abuse, the processes of mediationitself, and the ability to recognize the impact on mediation of culture anddiversity. Arbitration may be used in matters concerning property division,and child and spousal support. Resort to arbitration is also sometimes speci-fied as part of the divorce settlement itself when parties agree in writing thatany future controversies will be decided by some form of arbitration.




Documents

TYPES AND STYLES OF FAMILY PROCEEDINGS · TYPES AND STYLES OF FAMILY PROCEEDINGS 353 disputes pertaining to family matters. On the other hand, under the current system in Japan, original